1. Definitions. For purposes of this Agreement, each capitalized word or phrase listed below shall have the meaning designated:
  2. Performance. Each party will (directly or through its Affiliates or designated contractors provided however that delegation of any duty or obligation shall not relieve the party of such duty or obligation) perform its duties and obligations in relation to such exhibits in a timely and professional manner. Unless otherwise specified in this Agreement, each party is to bear its own costs and expenses of performance. The parties’ respective activities under this Agreement are non-exclusive and nothing herein shall limit or restrict the ability of a party or its Affiliates now or in the future from directly or indirectly providing, receiving, creating or assisting others with similar goods and services as those that are the subject of this Agreement. For the avoidance of doubt, the previous sentence shall not be construed as a waiver of or license to any party’s Intellectual Property Rights, nor shall it be construed to permit activities that are expressly prohibited by this Agreement, such as the unauthorized use of Confidential Information.
  3. Rights.
  4. Fees and Payment Terms.
  5. Taxes. CUSTOMER shall be responsible for the payment of any and all taxes applicable to the license and use of the DATATRON Services under this Agreement (other than those based upon DATATRON’s net income and employees) including, without limitation, CUSTOMER’s income, payroll, sales, VAT, use, gross receipts, real estate, personal property or other taxes imposed upon transactions under this Agreement (“Taxes”), and will indemnify and hold harmless DATATRON for any loss or damage (including without limitation any penalties and interest) sustained because of CUSTOMER’s failure to pay such taxes. If DATATRON has the legal obligation to pay or collect Taxes for which CUSTOMER is responsible under this section, the appropriate amount shall be invoiced to and paid by CUSTOMER upon notice and documentation (if any, within DATATRON’s possession) by DATATRON to CUSTOMER unless CUSTOMER provides DATATRON with a valid tax exemption certificate authorized by the appropriate taxing authority.
  6. Confidential Information.
  7. Term and Termination.
  8. Intellectual Property Ownership.
  9. Indemnification.
  10. Warranties.
  11. Limitation of Liability.
  12. Notices. All notices, demands, requests or other communications given under this Agreement shall be in writing and be given by personal delivery, certified mail, return receipt requested, or nationally recognized overnight courier service to the address set forth in the Cover Page, or by electronic delivery to email or facsimile numbers as set forth in the Cover Page, or to such address or email or facsimile numbers which have been subsequently designated by a party by a notice made under this paragraph.
  13. Publicity. Either party may disclose the existence of this Agreement including, without limitation, disclosure deemed reasonably necessary to comply with the disclosure obligations of public companies. Each party will obtain the other party’s prior written consent prior to any press release that is focused solely on such party or this Agreement. Notwithstanding the foregoing, the other terms and conditions of this Agreement remain the Confidential Information of both parties.
  14. Independent Contractor Status. It is expressly agreed and understood that as between DATATRON and CUSTOMER, that CUSTOMER (and any officer, employee, Affiliate, agent or other representative of CUSTOMER) is performing the CUSTOMER Services as an independent contractor and is neither an employee nor agent of or on behalf of DATATRON.
  15. No Waiver or Modification. This Agreement may not be amended, modified or terminated orally, and no amendment, modification, termination or attempted waiver of any of the provisions hereof shall be binding unless in writing and executed by authorized representatives of both parties.
  16. Severability. Should any provision hereof be deemed, for any reason whatsoever, to be invalid or inoperative, such provision shall be deemed severable and shall not affect the force and validity of other provisions of this Agreement.
  17. Governing Law and Dispute Resolution by Arbitration. This Agreement shall be interpreted in accordance with the laws of the State of California, (excluding conflict of laws rules) as applied to agreements entered into and to be performed entirely within the State of California between California residents, without giving effect to any conflict of law principles that would require the application of the laws of a different jurisdiction. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be determined by arbitration administered by the American Arbitration Association/International Centre for Dispute Resolution ( in accordance with its Commercial Arbitration Rules (or International Arbitration Rules if applicable); the number of arbitrators shall be one, the place of arbitration shall be San Francisco, California, and the the language of the arbitration shall be English. Each party acknowledges that any actual or threatened breach of Section 6 (“Confidential Information”) may cause the other party irreparable harm for which money damages may not be an adequate remedy, and that injunctive relief may be an appropriate remedy for such breach in arbitration and in any court of competent jurisdiction.
  18. Attorney’s Fees. In any action or proceeding to enforce rights or obligations under this Agreement, the substantially prevailing party shall be entitled to recover in addition to any other costs or damages awarded, all reasonable costs of litigation, including, but not limited to expert witness’ fees and attorneys’ fees.
  19. Force Majeure. Neither CUSTOMER nor DATATRON shall be held responsible for any delay or failure in performance under this Agreement arising out of causes beyond its control, or without its fault or negligence. Such causes may include, but are not limited to, fires, terrorist acts, strikes, embargoes, shortages or supplies of raw materials, or components or finished goods, acts of God, or national disasters.
  20. Assignment. Either party may assign this Agreement in connection with the sale of all, or substantially all, of its business (whether by merger, consolidation, transfer of control, sale of assets, operation of law or otherwise) upon not less than thirty (30) days written notice of such proposed sale and assignment to the other party, provided that any proposed assignee assumes all rights and obligations of the assigning party under the Agreement and is ready, willing and able to do so. Any other attempt to assign this Agreement without prior written consent shall be null and void.
  21. Counterparts. This Agreement may be executed in counterparts, each of which is deemed to be an original and all of which together constitute one and the same agreement. Each executed counterpart may be delivered by facsimile, and copies bearing the facsimile signature of a party constitute a valid and binding execution and delivery of this Agreement.
  22. Entire Agreement. The provisions herein constitute the entire agreement between the parties and supersede all prior agreements, oral or written, and all other communications between the parties, including any and all supplier or distribution agreements and purchase orders. No term or condition contained in any document provided by one party to the other party pursuant to this Agreement shall be deemed to amend, modify, or supersede or take precedence over the terms and conditions contained herein; provided, however, that to the extent the terms and conditions of an exhibit under this Agreement may conflict, the exhibit shall control as to its subject matter.